The Tedious Detail
I wrote to CASA’s ‘Regulatory Guidance Centre’ in the following terms today:
Background
CASR 119.010 is headed
Definition of Australian air transport operation. Subregulation (1) says:
(1) An operation is an Australian air transport operation if the operation is any of the following:
(a) an air transport operation conducted by an Australian operator using a registered aeroplane or rotorcraft;
(b) an air transport operation:
(i) that is a flight into or out of Australian territory or an operation in Australian territory; and
(ii) that is conducted by an Australian operator using an aeroplane or rotorcraft that is a foreign registered aircraft;
(c) an air transport operation:
(i) that is conducted by an Australian operator using an aeroplane or rotorcraft; and
(ii) that is provided for under the ANZA mutual recognition agreements;
(d) an air transport operation conducted by a foreign operator:
(i) using an aeroplane or rotorcraft that is a foreign registered aircraft; and
(ii) undertaken wholly within Australia; and
(iii) not undertaken as part of a flight into or out of Australian territory;
(e) an operation, conducted using an aeroplane or rotorcraft, of a kind prescribed by the Part 119 Manual of Standards for the purposes of this paragraph.
I note that each of paragraphs (a), (b), (c) and (d) commences with “an air transport operation”. The term “air transport operation” is defined in Part 2 of the CASR Dictionary. Accordingly, it seems to me that an operation cannot fall within the scope of any of those paragraphs unless the operation is at least an “air transport operation” as defined in Part 2 of the CASR Dictionary.
In contrast, paragraph (e) commences with “an operation”. Therefore, it seems to me that on its face in isolation, paragraph (e) purports to authorise the prescription, in the Part 119 MOS, of
any operation conducted using an aeroplane or rotorcraft,
even if the operation does not fall within the scope of the CASR definition of “air transport operation”, such that the operation becomes an “Australian air transport operation”.
(Even further, all paragraphs other than (e) include criteria relating to the nationality or geographical location of the aeroplane or rotorcraft, or its operator, engaged in the air transport operation. Those criteria seem to me to go to the “Australian” element of “Australian air transport operation”. Therefore, on its face in isolation, paragraph (e) seems to me to purportedly authorise the prescription, in the Part 119 MOS, of
any operation conducted using an aeroplane or rotorcraft,
even if the aeroplane or rotorcraft is neither Australian nor operated by an Australian operator nor operated wholly within Australia, with the outcome being that the operation becomes an “Australian air transport operation”.)
In short, CASR 119.010(1)(e) seems to me on its face to authorise CASA to turn any operation of any aeroplane or rotorcraft into an “Australian air transport operation” even if it is not an air transport operation as defined in CASR (and even if it has no connection with Australia). CASA appears to be able to do that by putting a sentence into the Part 119 MOS.
The outcome is that “black” can mean “white”.
Questions
Question 1: In CASA’s opinion, does CASR 119.010(1)(e) authorise the prescription, in the Part 119 MOS, of an operation which is not an “air transport operation” as defined in the CASR Dictionary, such that the operation becomes an “Australian air transport operation” subject to Part 119 and, potentially, Part 121? For simplicity, assume the operation is one using an Australian registered aeroplane. Please note: This is a closed question.
Question 2: If the answer to Question 1 is yes, does CASA consider that it has power in principle to, for example, prescribe “cost-sharing” flights as defined in the CASR Dictionary (and which are therefore flights excluded from the definition of “passenger transport operation” and in turn outside the scope of the definition of “air transport operation”) as operations for the purposes of CASR 119.010(1)(e), with the result that “cost-sharing” flights become an “Australian air transport operation”? For simplicity, assume the operation is one using an Australian registered aeroplane. Please note: This is a closed question.
Question 3: Is CASA confident that prescription in a MOS subordinate to CASR is a lawful way of in effect reversing the way in which the regulations operate on their face by, for example, turning an operation that is not an air transport operation as defined in the CASR Dictionary into an Australian air transport operation?
Comment:Manuals of Standards are supposed to contain standards and technical requirements. Prescription of operations in a MOS subordinate to a Part of CASR, to which operations that Part will purportedly apply as the consequence of that prescription, is neither a standard nor a technical requirement. It effectively operates as an application provision for the some of the regulations.
Question 4: Assuming CASA is confident in terms of question 3, does CASA comprehend the confusion that is caused when the outcomes produced by definitions applied on the face of the operative regulations can in effect be altered by sentences buried in Manuals of Standards?
Comments: The results in the example I raised include that a person proposing to engage in a “cost-sharing” flight as defined in the CASR Dictionary will reasonably assume,
and correctly assume, that the flight will not be an “air transport operation” as defined in the CASR Dictionary. That person would also reasonably assume, but
perhaps incorrectly assume, that the holder of a PPL may lawfully be the PIC of that flight and the flight does not have to be authorised by an AOC. But it appears the person should also somehow know that they need to look at the Part 119 MOS to find out whether their flight which is not an air transport operation is nonetheless an Australian air transport operation which must be authorised at least by an AOC.